HKSAR v. VALLE SANCHEZ CARLOS HUMBERTO

HCCC 417/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 417 OF 2015

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Transcript of the Audio Recording

of the Sentence in the above Case

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COURT: The defendant has been convicted on his own plea of one charge of trafficking in a dangerous drug. The guilty plea was entered at the Eastern Magistrates’ Court on 23 October 2015.

The Particulars of Offence provide that on 23 March 2015, at the Customs Arrival Hall, Hong Kong International Airport, Lantau Island in Hong Kong, the defendant unlawfully trafficked in a dangerous drug, namely 825 grammes of a viscous liquid containing 636 grammes of cocaine.

The Summary of Facts which has been admitted by the defendant provides, inter alia, that at about 1210 hours on 23 March 2015, the defendant, who arrived from Lima/Peru via Amsterdam/Netherlands, was intercepted at the Green Channel of Customs Arrival Hall B of the Hong Kong International Airport for customs clearance.

The defendant’s personal belongings were searched and no irregularity was detected. On suspicion that he had internal concealment of drugs, the defendant was escorted to the North Lantau Hospital for a medical examination. At about 1745 hours the same day, a medical officer confirmed the presence of foreign objects inside the defendant’s body cavity.

The defendant was arrested and cautioned by Customs Inspector Leung Man-chung. Under caution, the defendant stated that he did not understand English.

The defendant was admitted to the Queen Elizabeth Hospital for further medical examination and discharge of drugs. At 2015 hours he vomited six packets of suspected dangerous drugs in liquid form which, when tested, gave a positive reaction to cocaine. In total, 40 packets of suspected liquid cocaine had been discharged by him between 23 March 2015 and 31 March 2015 at the Queen Elizabeth Hospital.

The suspected dangerous drugs were examined by Government Chemist and found to consist of 825 grammes of a viscous liquid containing 636 grammes of cocaine.

The street value of the dangerous drug was estimated at $880,275.

The Travel Movement Record provided by the Hong Kong Immigration Service showed that the defendant arrived at the Hong Kong International Airport at 1208 hours on 23 March 2015.

In the Summary of Facts, the defendant expressly admitted that at all material times, he unlawfully trafficked in the dangerous drug in Hong Kong.

By way of background, the defendant is 72 years of age. He was born in Lima, Peru in May 1943. The defendant received primary education in Peru. He is married with a 50-year-old wife. He has three sons and the defendant was unemployed at the time of his arrest. The defendant has no criminal conviction record in Hong Kong.

In mitigation, Mr Keith Hotten submitted on the defendant’s behalf that the defendant is remorseful. Mr Hotten urged upon me to take into account the defendant’s guilty plea, which I shall do.

I was told that the defendant wished to fly to Spain from Peru to see his wife, and he was promised US$5,000 for bringing the drugs. Mr Hotten urged me to bear in mind the defendant’s age when considering the sentence.

In this regard, Silke VP had this to say in R v Lau Tak Ming [1990] 2 HKLR 370 at 386F-G:

“It must be borne in mind that these are offences of the utmost gravity which may well result in mitigating factors which, for less serious offences could lead to a discount, having little weight. By this we mean age and disability - though extreme youth may call for special consideration. Drug dealers are notorious for attempting to elicit sympathy from the Courts for their middlemen by the use of the blind, the maimed, the halt, the young and the aged in the carrying out of their nefarious trade.”

In the premises, I do not regard it as appropriate to give the defendant any discount in his sentence on account of his age.

The narcotic content of the dangerous drug involved in this case is 636 grammes of cocaine. In this jurisdiction, sentencing for trafficking in cocaine is aligned to the guidelines for trafficking in heroin. In HKSAR v Abdallah [2009] 2 HKLRD 437, it was held by the Court of Appeal that for trafficking in between 600 to 1,200 grammes of heroin, the guideline starting point after trial should be 20 to 23 years’ imprisonment.

In my view, following the guidelines in the Abdallah case and based on the quantity of the narcotic involved, the proper initial staring point for sentence should be 20 years and 2 months’ imprisonment.

This should be enhanced by 1 year and 3 months for the international element in the present case [see: HKSAR v Chung Ping Kun [2014] 6 HKC 106, at paragraph 9].

Accordingly, the enhanced starting point for sentence is 21 years and 5 months’ imprisonment.

I shall give the defendant the full one-third discount for his guilty plea.

The defendant is sentenced to 14 years and 3 months’ imprisonment.